Atherton v. Atkins

C. Allen, J. The testimony as to what Flynn said was of itself immaterial and incompetent. But the argument for its, admission is now put on the ground that it would account for the defendants’ subsequent conduct in showing horses to the 63 plaintiff. The difficulty in our entertaining this view is, that it does not appear by the bill of exceptions that the evidence was offered for that purpose at the trial, or that the defendants’ subsequent conduct had already been shown as a fact in the case, at the time when the evidence of what Flynn said was excluded. Where evidence has been excluded which was incompetent of itself, but the party who offered it relies, at the argument in this court on the bill of exceptions, on some special ground or circumstances to make it competent, — as, for example, to explain some equivocal act of the party which has been shown by his adversary and is relied on in the case, — the bill of exceptions should show clearly that such special ground or circumstances existed, and that the evidence was offered for the special purpose. Collins v. Stephenson, 8 Gray, 438, 441. Jones v. Smith, 121 Mass. 15. Exceptions overruled.